H-1B Quota Exemption; H-1B Cap Exempt Employers

ByPhillip Kim

H-1B Quota Exemption; H-1B Cap Exempt Employers

H1B cap exempt employers: H1B cap exempt petitions include petitions filed by:

Institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a);

Under the definition, an institution of higher education is one which:
admits students who have completed secondary education;
is licensed to provide education beyond secondary school;
provides educational programs for which the institutions award bachelors’ degrees or provide programs of not less than 2 years that are acceptable for full credit toward bachelors’ degrees;
is a public or nonprofit institution; and
is accredited or has been granted pre-accreditation status by a recognized accrediting agency.
Related or affiliated to a higher education institution nonprofit entity: The USCIS states that it is sufficient that a nonprofit entity is connected to an institution of higher education through shared ownership, control or be somehow attached to the higher education institution as a member, branch or subsidiary.
The types of non-profits that qualify for this exemption have been construed narrowly:At present other types of non-profits (non-profit service, community, policy and arts organizations) do not qualify for the exemption from H1B cap. Unless the non-profit employer is primarily devoted to research, or is formally affiliated with a university, it will not qualify as a cap-exempt H1B petitioner.

It is important to note that public secondary schools do NOT qualify for H1B cap-exemption unless they have a formal affiliation agreement with a college or university. However, the exemption does cover certain professionals employed by a for-profit entity but working at an exempt location, as long as their work continues to serve the core mission of the exempt institution, such as a physicians’ practice group affiliated with and located at a university teaching hospital.

Nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)(C). A nonprofit research organization is an organization that is primarily engaged in basic research and/or applied research. A governmental research organization is a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research.

Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. It may include research and investigation in the sciences, social sciences, or humanities. Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met. Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services. It may include research and investigation in the sciences, social sciences, or humanities.

About the author

Phillip Kim administrator